Withler v. Canada (Attorney General)

Withler v. Canada (Attorney General)
Collection
Supreme Court Judgments
Date
2011-03-04
Neutral citation
2011 SCC 12
Report
[2011] 1 SCR 396
Case number
33039
Judges
McLachlin, Beverley; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall; Cromwell, Thomas Albert
On appeal from
British Columbia
Subjects
Constitutional law
Notes
SCC Case Information: 33039
Decision Content
SUPREME COURT OF CANADA
Citation: Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396
Date: 20110304
Docket: 33039
Between:
Hazel Ruth Withler and Joan Helen Fitzsimonds
Appellants
and
Attorney General of Canada
Respondent
- and -
Attorney General of Ontario and
Women’s Legal Education and Action Fund
Interveners
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
Joint Reasons for Judgment:
(paras. 1 to 84)
McLachlin C.J. and Abella J. (Binnie, LeBel, Deschamps, Fish, Charron, Rothstein and Cromwell JJ. concurring)
Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396
Hazel Ruth Withler and
Joan Helen Fitzsimonds Appellants
v.
Attorney General of Canada Respondent
and
Attorney General of Ontario and
Women’s Legal Education and Action Fund Interveners
Indexed as: Withler v. Canada (Attorney General)
2011 SCC 12
File No.: 33039.
2010: March 17; 2011: March 4.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the court of appeal for british columbia
Constitutional law — Charter of Rights — Right to equality — Discrimination based on age — Federal pension legislation reducing supplementary death benefit by 10 percent for each year by which plan member exceeds prescribed ages — Surviving spouses receiving reduced supplementary death benefits — Whether reduction provisions discriminate against surviving spouses — Canadian Charter of Rights and Freedoms, ss. 1 , 15(1) — Canadian Forces Superannuation Act, R.S.C. 1985, c. C‑17, s. 60(1) — Public Service Superannuation Act, R.S.C. 1985, c. P‑36, s. 47(1) .
Constitutional law — Charter of Rights — Right to equality — Contextual analysis — Whether use of comparator groups is appropriate in analysis of equality rights — Canadian Charter of Rights and Freedoms, s. 15(1) .
The appellants, representative plaintiffs in two class actions, are widows whose federal supplementary death benefits were reduced because of the age of their husbands at the time of death. The Public Service Superannuation Act and the Canadian Forces Superannuation Act provide federal civil servants and members of the Canadian Forces, and their families, with a suite of work-related benefits, including a “supplementary death benefit”, a lump sum payment made to a plan member’s designated beneficiary upon the member’s death. The supplementary death benefit is reduced by 10 percent for each year by which the plan member exceeded a prescribed age.
The appellants contend that those provisions are of no force and effect because they infringe s. 15(1) of the Charter and are not justified under s. 1 . They seek a monetary judgment in the amount by which their supplementary death benefits were reduced. The trial judge dismissed both class actions and the British Columbia Court of Appeal upheld the trial decision.
Held: The appeal should be dismissed.
The central and sustained thrust of the Court’s s. 15(1) jurisprudence has been the need for a substantive contextual approach and a corresponding repudiation of a formalistic “treat likes alike” approach. An analysis based on formal comparison between the claimant group and a “similarly situated” group promotes formal, not substantive equality. A “mirror comparator group” analysis may become a search for sameness, may shortcut the substantive equality analysis and may be difficult to apply. While equality is inherently comparative and comparison plays a role throughout the s. 15(1) analysis, a mirror comparator approach can fail to identify — and may, indeed, thwart the identification of — the discrimination at which s. 15 is aimed. What is required is an approach that takes account of the full context of the claimant group’s situation, the actual impact of the law on that situation, and whether the impugned law perpetuates disadvantage to or negative stereotypes about that group.
The jurisprudence establishes a two-part test for assessing a s. 15(1) claim: (1) Does the law create a distinction that is based on an enumerated or analogous ground? and (2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping? The claimant must establish that he or she has been denied a benefit that others are granted or carries a burden that others do not, by reason of a personal characteristic that falls within the enumerated or analogous grounds of s. 15(1) . It is not necessary to pinpoint a mirror comparator group. Provided that the claimant establishes a distinction based on one or more of the enumerated or analogous grounds, the claim should proceed to the second step of the analysis. This provides the flexibility required to accommodate claims based on intersecting grounds of discrimination. At the second step, the question is whether, having regard to all relevant factors, the distinction the law makes between the claimant group and others discriminates by perpetuating disadvantage or prejudice to the claimant group, or by stereotyping it.
Since the Reduction Provisions at issue in this case are age-related, they constitute an obvious distinction on an enumerated ground, but, because the age-based rules are, overall, effective in meeting the actual needs of the claimants and in achieving important goals such as ensuring that retiree benefits are meaningful, they do not violate s. 15(1) . Pension benefit schemes are designed to benefit a number of groups in different circumstances and with different interests, and each element of the scheme must be considered in relation to the suite of benefits provided. As a broad-based scheme meant to cover the competing interests of various age groups, distinctions on general criteria, including age, had to be made to address the members’ different needs over the course of their working lives. When the supplementary death benefit is considered in the context of the other pensions and benefits to which the surviving spouses are entitled, it is clear that its purpose corresponds to their needs. For younger employees, it acts as group life insurance by insuring against unexpected death at a time when the surviving spouse would not be protected by a pension. For older employees, whose spouses’ long-term income security is guaranteed by the survivor’s pension coupled with the public service’s health and dental plans, it is intended to assist with the costs of last illness and death.
It is unnecessary to consider justification under s. 1 .
Cases Cited
Applied: Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; explained: Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78, [2004] 3 S.C.R. 657; Hodge v. Canada (Minister of Human Resources Development), 2004 SCC 65, [2004] 3 S.C.R. 357; referred to: R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483; Ermineskin Indian Band and Nation v. Canada, 2009 SCC 9, [2009] 1 S.C.R. 222; A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 S.C.R. 181; Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567; Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203; R. v. Turpin, [1989] 1 S.C.R. 1296; Haig v. Canada (Chief Electoral Officer), [1993] 2 S.C.R. 995; Lovelace v. Ontario, 2000 SCC 37, [2000] 1 S.C.R. 950; Gosselin v. Quebec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429; Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504; M. v. H., [1999] 2 S.C.R. 3; Granovsky v. Canada (Minister of Employment and Immigration), 2000 SCC 28, [2000] 1 S.C.R. 703.
Statutes and Regulations Cited
Canada Pension Plan, R.S.C. 1985, c. C‑8 .
Canadian Charter of Rights and Freedoms, ss. 1 , 15 .
Canadian Forces Superannuation Act, R.S.C. 1985, c. C‑17, s. 60(1) .
Canadian Forces Superannuation Regulations, C.R.C., c. 396, s. 52.
Public Service Superannuation Act, R.S.C. 1985, c. P‑36, s. 47(1) .
Supplementary Death Benefit Regulations, C.R.C., c. 1360, ss. 15, 16.
Authors Cited
Gilbert, Daphne. “Time to Regroup: Rethinking Section 15 of the Charter ” (2003), 48 McGill L.J. 627.
Gilbert, Daphne, and Diana Majury. “Critical Comparisons: The Supreme Court of Canada Dooms Section 15” (2006), 24 Windsor Y.B. Access Just. 111.
Hogg, Peter W. Constitutional Law of Canada, 5th ed. Supp., vol. 2. Scarborough, Ont.: Thomson/Carswell, 2007 (loose‑leaf updated 2010, release 1).
Iyer, Nitya. “Categorical Denials: Equality Rights and the Shaping of Social Identity” (1993), 19 Queen’s L.J. 179.
Moreau, Sophia Reibetanz. “Equality Rights and the Relevance of Comparator Groups” (2006), 5 J.L. & Equality 81.
Pothier, Dianne. “Connecting Grounds of Discrimination to Real People’s Real Experiences” (2001), 13 C.J.W.L. 37.
Wright, Andrea. “Formulaic Comparisons: Stopping the Charter at the Statutory Human Rights Gate”, in Fay Faraday, Margaret Denike and M. Kate Stephenson, eds., Making Equality Rights Real: Securing Substantive Equality under the Charter. Toronto: Irwin Law, 2006, 409.
Young, Margot. “Blissed Out: Section 15 at Twenty”, in Sheila McIntyre and Sanda Rodgers, eds., Diminishing Returns: Inequality and the Canadian Charter of Rights and Freedoms. Markham, Ont.: LexisNexis, 2006, 45.
APPEAL from a judgment of the British Columbia Court of Appeal (Rowles, Ryan and Newbury JJ.A.), 2008 BCCA 539, 87 B.C.L.R. (4th) 197, 302 D.L.R. (4th) 193, 183 C.R.R. (2d) 301, 72 C.C.P.B. 161, 263 B.C.A.C. 257, 443 W.A.C. 257, [2009] 3 W.W.R. 628, [2008] B.C.J. No. 2507 (QL), 2008 CarswellBC 2750, upholding a decision of Garson J., 2006 BCSC 101, 137 C.R.R. (2d) 224, 51 C.C.P.B. 19, [2006] B.C.J. No. 101 (QL), 2006 CarswellBC 86. Appeal dismissed.
Joseph J. Arvay, Q.C., John C. Kleefeld and Elin R. S. Sigurdson, for the appellants.
Donald J. Rennie, Sharlene Telles-Langdon and Dale Yurka, for the respondent.
Robert E. Charney and Matthew Horner, for the intervener the Attorney General of Ontario.
Daphne Gilbert, Joanna Radbord and Joanna Birenbaum, for the intervener the Women’s Legal Education and Action Fund.
The judgment of the Court was delivered by
The Chief Justice and Abella J. —
I. Introduction
[1] The plaintiffs are widows whose federal supplementary death benefits were reduced because of the age of their husbands at the time of death. They argue that the legislation reducing their benefits discriminates on the basis of age, violating the equality guarantee in s. 15(1) of the Canadian Charter of Rights and Freedoms . We agree with the trial judge and the majority of the Court of Appeal that it does not.
[2] To resolve this appeal, we must consider comparison and the role of “mirror” comparator groups under s. 15(1) , an issue that divided the courts below. In our view, the central issue in this and other s. 15(1) cases is whether the impugned law violates the animating norm of s. 15(1) , substantive equality: Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143. To determine whether the law violates this norm, the matter must be considered in the full context of the case, including the law’s real impact on the claimants and members of the group to which they belong. The central s. 15(1) concern is substantive, not formal, equality. A formal equality analysis based on mirror comparator groups can be detrimental to the analysis. Care must be taken to avoid converting the inquiry into substantive equality into a formalistic and arbitrary search for the “proper” comparator group. At the end of the day there is only one question: Does the challenged law violate the norm of substantive equality in s. 15(1) of the Charter ?
[3] Where, as here, the impugned distinction is the denial of a benefit that is part of a statutory benefit scheme that applies to a large number of people, the discrimination assessment must focus on the object of the measure alleged to be discriminatory in the context of the broader legislative scheme, taking into account the universe of potential beneficiaries. The question is whether, having regard to all relevant factors, the impugned measure perpetuates disadvantage or stereotypes the claimant group, contrary to s. 15(1) of the Charter .
II. The Legislation
[4] The appellants challenge the constitutionality of benefit provisions of the Public Service Superannuation Act, R.S.C. 1985, c. P-36 , and the Canadian Forces Superannuation Act, R.S.C. 1985, c. C-17 . These two statutes provide federal civil servants and members of the Canadian Forces, and their families with a suite of work-related benefits both during employment and after retirement, including a package of survivor benefits provided to the surviving spouse and dependants of a plan member after his or her death.
[5] The package of survivor benefits offered under both the Public Service Superannuation Act and the Canadian Forces Superannuation Act includes a “supplementary death benefit”. This benefit is akin to life insurance. It provides for a lump sum payment to be made to a plan member’s designated beneficiary at the time of the member’s death. For younger plan members, the purpose of the supplementary death benefit is to insure against unexpected death at a time when the deceased member’s surviving spouse would be unprotected by a pension or entitled to limited pension funds. For older members, the purpose of the supplementary death benefit is to assist surviving spouses with the costs of the plan member’s last illness and death. This death benefit is not intended to be a long-term income stream for the spouses of older plan members.
[6] Under both Acts, the amount of the supplementary death benefit is equal to twice the plan member’s salary at the time of death or termination of employment. Each Act, however, contains “Reduction Provisions” which take effect when the plan member reaches a certain age. For civil servants, the value of the supplementary death benefit is reduced by 10 percent for every year by which the plan member exceeds the age of 65 (Public Service Superannuation Act, s. 47(1) ). For members of the armed forces, the value of the benefit is reduced by 10 percent for every year by which the plan member exceeds age 60 (Canadian Forces Superannuation Act, s. 60(1) ). It is these Reduction Provisions that are at issue in this appeal.
[7] Most federal civil servants and members of the armed forces must participate in the supplementary death benefit plan while they are employed, and may, at their option, participate in the plan after retirement. The average retirement age of civil servants is 58 or 59, and the average retirement age for members of the armed forces is 45, after 25 years of service.
[8] The supplementary death benefit is only one part of a package of survivor benefits available under the Public Service Superannuation Act and the Canadian Forces Superannuation Act . The package of survivor benefits also includes a survivor’s pension (a defined benefit plan, indexed, adjusted annually and backed by the solvency of the federal government, paying 50 percent of the plan member’s unreduced pension); a health care plan (which reimburses 80 percent of a surviving spouse’s extended health care expenses); a dental care plan (which covers a tariff amount for a surviving spouse’s dental procedures); a children’s allowance (which pays a plan member’s surviving spouse one fifth of the member’s pension if the plan member died leaving minor children); and a student’s allowance (payable to the children aged 18 to 25 of a deceased plan member while they are enrolled in full-time post-secondary education).
[9] Participants in the civil service and Canadian Forces pension and benefits plans, along with their spouses, are also eligible for benefits available to all Canadians, such as those provided for under the Canada Pension Plan, R.S.C. 1985, c. C-8 .
III. The Claims
[10] The appellants, Hazel Ruth Withler and Joan Helen Fitzsimonds, are the representative plaintiffs in two class actions. They contend that the Reduction Provisions discriminate on the basis of age contrary to s. 15(1) of the Charter and are not justified under s. 1 . They seek a declaration that the Reduction Provisions infringe s. 15(1) of the Charter and are therefore of no force or effect. They also seek a monetary judgment for the amount by which their supplementary death benefits were reduced by virtue of the Reduction Provisions. According to actuarial evidence presented at trial, the monetary judgments sought amounted to $2,308,000,000 in the civil service action and $285,000,000 in the armed forces action.
[11] The class in each action is comprised of the surviving spouses of former federal government employees or members of the Canadian Forces who died between April 17, 1985 (when s. 15 of the Charter came into force) and November 2, 2001 (when the class proceedings were certified). Each class member received a reduced supplementary death benefit by operation of the Reduction Provisions.
[12] Within each plaintiff class, the level of economic well-being varies. Each class member, however, receives a survivor’s pension and each is ineligible for the federal government’s guaranteed income supplement because his or her income is too high.
IV. The Arguments
[13] Ms. Withler and Ms. Fitzsimonds argue that the Reduction Provisions create distinctions and impose disadvantages based on age or grounds analogous to age, contrary to s. 15(1) of the Charter , which provides:
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
[14] The claimants acknowledge that statutory age-based distinctions may be valid if the age chosen is reasonably related to the statute’s legislative goal. They argue, however, that the Reduction Provisions are wholly unrelated to any legitimate legislative goal. It is arbitrary, they contend, to reduce the supplementary death benefit on the basis of age because most, if not all, persons over 65 (or 60) need the supplementary death benefit, and that need increases over time. The claimants contend that the Reduction Provisions are based on an uninformed and inaccurate stereotype that the older one gets the less one needs financial assistance and that the Reduction Provisions do not correspond to their actual needs and circumstances. Finally, the claimants submit that the Reduction Provisions discriminate against them on the basis of age because they perpetuate the belief that as a person ages, he or she becomes less deserving of the benefit or worthy of the state’s care and concern.
[15] The Attorney General of Canada submits that there is no evidence that the age-based distinction set out in the Reduction Provisions perpetuates historical disadvantage, prejudice or stereotyping. The supplementary death benefit is, in its view, merely one component of a suite of benefits. The entire suite operates in tandem to provide a reasonable measure of protection for plan members and their families. The failure of the plans to meet the needs of all members at all times, the Attorney General submits, does not render the Reduction Provisions discriminatory.
V. Judicial History
[16] The trial judge, Garson J., dismissed both class actions (2006 BCSC 101, 137 C.R.R. (2d) 224). She found it difficult to identify an appropriate comparator group, because the claimant classes were composed of many different people in many different situations and economic circumstances. She reluctantly accepted the comparator group proposed by the claimants — civil servants and members of the armed forces who received an unreduced supplementary death benefit — as the basis for the analysis.
[17] Garson J. went on to apply a contextual discrimination analysis, and concluded that the Reduction Provisions were not discriminatory:
The design of the whole benefit package is a balancing exercise that takes into account the whole population of civil servants, and members of the armed forces. It is integrated with all the other benefits and also balances the interests of the public to ensure that the civil service is treated equitably but not over generously. [para. 155]
[18] When the Reduction Provisions were considered in relation to the entire benefit plan provided for by the Public Service Superannuation Act and the Canadian Forces Superannuation Act , they corresponded to the claimants’ needs and circumstances. The legislative scheme as a whole accounted for each claimant’s need for a continued income stream, as well as for life insurance coverage at the time of his or her spouse’s death. The plans did not bear any of the hallmarks of discrimination and did not demean the claimants’ dignity.
[19] On appeal to the British Columbia Court of Appeal, Ryan J.A. (Newbury J.A. concurring) upheld the trial decision (2008 BCCA 539, 87 B.C.L.R. (4th) 197). Like the trial judge, they saw the real issue as whether, viewing the case in its entire context, discrimination under s. 15(1) of the Charter had been established.
[20] Ryan J.A. rejected the claimants’ submission that the appropriate comparator group should be narrowed to consist only of surviving spouses who received both an unreduced supplementary death benefit and a survivor’s pension. Narrowing the comparator group in this way would, in Ryan J.A.’s view, deprive the court of the ability to fully analyse whether the impugned legislative distinction was discriminatory. The proper comparator group was, as the trial judge had found, all recipients of an unreduced supplementary death benefit.
[21] Ryan J.A. held that the trial judge had properly considered the discrimination claim with reference to the benefits package as a whole and correctly concluded that discrimination had not been made out. Finding no error of fact or law in the trial judge’s reasoning, she dismissed the appeal, commenting:
This case demonstrates the difficulty that arises when one attempts to isolate for criticism a single aspect of a comprehensive insurance and pension package designed to benefit an employee’s different needs over the course of his or her working life. . . . The comprehensive plan, while not a perfect fit for each individual, did not meet the hallmarks of discrimination given that it was a broad-based scheme meant to cover the competing interests of the various age groups covered by the plan. [para. 181]
[22] Rowles J.A., dissenting, would have allowed the appeal. In her view, the trial judge erred by failing to fully state and consistently apply the appropriate comparator group. Rowles J.A. accepted the claimants’ submission that, pursuant to the mirror comparator approach, the appropriate comparator group was comprised of surviving spouses who both received an unreduced supplementary death benefit and were eligible for a survivor’s pension. She cautioned, at paras. 58-59, that a “contextual analysis” did not invite a “broad, generalized examination of the facts in evidence”, but rather entailed a “directed inquiry” focussed through the application of the four factors set out in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497.
[23] Rowles J.A. concluded that seniors suffer from disadvantage and vulnerability based on their economic well-being, and that the Reduction Provisions did not account for the claimants’ actual circumstances. The claimants clearly had greater needs than the younger surviving spouses, whose benefits were unreduced. Concluding that the Reduction Provisions served no ameliorative purpose and the interest affected was significant, Rowles J.A. held that a reasonable person in the claimants’ circumstances would feel ignored and devalued on account of the Reduction Provisions. This amounted to an affront to the claimants’ dignity and, consequently, a breach of s. 15(1) of the Charter , which was not justified under s. 1 .
VI. The Issues
[24] The first issue is whether the appellants lack standing because their claim is based on the age of the deceased plan members rather than their own ages.
[25] The second and main issue is whether the Reduction Provisions discriminate against the claimants. The appeal, viewed broadly, calls for clarification of the role of mirror comparator groups and comparison in the s. 15(1) analysis. More precisely, the issue is how an analysis under s. 15(1) is to proceed where the impugned law is part of a wide-reaching legislative scheme of government benefits.
VII. Analysis
A. Standing
[26] The Attorney General of Canada has asserted throughout that the appellants lack standing because their claim is based on the age of the deceased plan members rather than their own age. Only those who suffer discrimination may bring a s. 15 claim, and in this case, it is the age of the plan member, not the surviving spouse, which is the basis for differential treatment. The Attorney General submits that this is not an instance where the legislation would be insulated from Charter scrutiny by denying the appellants standing. A plan member who has reached the age at which he or she is affected by the Reduction Provisions would have standing to bring a challenge.
[27] The majority of the Court of Appeal chose not to address standing, given its conclusion on the substantive issue. Because we agree with the trial judge and the majority of the Court of Appeal that there was no discrimination, it is technically unnecessary to decide the standing issue. That said, we find the trial judge’s reasoning generally persuasive.
[28] Garson J. concluded, “in this specific case, where the target of the impugned provision is the plaintiff and it is the plaintiff who suffers the discrimination associated with her spouse’s age, the plaintiff should have standing” (para. 92). The result is a just one, because in reality it is the plaintiffs who experience the impact of the Reduction Provisions. The Attorney General’s approach ignores the fact that, as Garson J. found, the impugned provisions are targeted at benefits payable to the plan members’ beneficiaries. As will be seen, it is the interests of the surviving spouses at various stages of the plan member’s working life that the benefit provisions attempt to address. No one is more directly affected by the Reduction Provisions than the surviving spouses. It is highly unlikely that the challenge would be mounted by the plan members themselves. There is also, as the trial judge found, likely to be a strong correlation between the age of the plan member and the age of the surviving spouse. In these circumstances, the trial judge was correct to grant the appellants standing.
B. The Equality Claim
(1) Substantive Equality: Overview
[29] Discrimination was defined by McIntyre J. in Andrews, as follows:
. . . discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual's merits and capacities will rarely be so classed. [pp. 174-75]
(See also R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483, at para. 17; Ermineskin Indian Band and Nation v. Canada, 2009 SCC 9, [2009] 1 S.C.R. 222, at para. 188; A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 S.C.R. 181, at para. 109; Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, at para. 106.)
[30] The jurisprudence establishes a two-part test for assessing a s. 15(1) claim: (1) Does the law create a distinction based on an enumerated or analogous ground? (2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping? (See Kapp, at para. 17.)
[31] The two steps reflect the fact that not all distinctions are, in and of themselves, contrary to s. 15(1) of the Charter (Andrews; Law; Ermineskin Indian Band, at para. 188). Equality is not about sameness and s. 15(1) does not protect a right to identical treatment. Rather, it protects every person’s equal right to be free from discrimination. Accordingly, in order to establish a violation of s. 15(1) , a person “must show not only that he or she is not receiving equal treatment before and under the law or that the law has a differential impact on him or her in the protection or benefit accorded by law but, in addition, must show that the legislative impact of the law is discriminatory” (Andrews, at p. 182; Ermineskin Indian Band, at para. 188; Kapp, at para. 28).
[32] McIntyre J. viewed discrimination through the lens of two concepts: (1) the perpetuation of prejudice or disadvantage to members of a group on the basis of personal characteristics identified in the enumerated and analogous grounds; and (2) stereotyping on the basis of these grounds that results in a decision that does not correspond to a claimant’s or group’s actual circumstances and characteristics (Andrews; Kapp, at para. 18).
[33] The first step in the s. 15(1) analysis ensures that the courts address only those distinctions that were intended to be prohibited by the Charter . In Andrews, it was held that s. 15(1) protected only against distinctions made on the basis of the enumerated grounds or grounds analogous to them. An analogous ground is one based on “a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity”: Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203, at para. 13. Grounds including sexual orientation, marital status, and citizenship have been recognized as analogous grounds of discrimination.
[34] However, a distinction based on an enumerated or analogous ground is not by itself sufficient to found a violation of s. 15(1) . At the second step, it must be shown that the law has a discriminatory impact in terms of prejudicing or stereotyping in the sense expressed in Andrews.
[35] The first way that substantive inequality, or discrimination, may be established is by showing that the impugned law, in purpose or effect, perpetuates prejudice and disadvantage to members of a group on the basis of personal characteristics within s. 15(1) . Perpetuation of disadvantage typically occurs when the law treats a historically disadvantaged group in a way that exacerbates the situation of the group. Thus judges have noted that historic disadvantage is often linked to s. 15 discrimination. In R. v. Turpin, [1989] 1 S.C.R. 1296, for example, Wilson J. identified the purposes of s. 15 as “remedying or preventing discrimination against groups suffering social, political and legal disadvantage in our society” (p. 1333). See also Haig v. Canada (Chief Electoral Officer), [1993] 2 S.C.R. 995, at pp. 1043-44; Andrews, at pp. 151-53, per Wilson J.; Law, at paras. 40-51.
[36] The second way that substantive inequality may be established is by showing that the disadvantage imposed by the law is based on a stereotype that does not correspond to the actual circumstances and characteristics of the claimant or claimant group. Typically, such stereotyping results in perpetuation of prejudice and disadvantage. However, it is conceivable that a group that has not historically experienced disadvantage may find itself the subject of conduct that, if permitted to continue, would create a discriminatory impact on members of the group. If it is shown that the impugned law imposes a disadvantage by stereotyping members of the group, s. 15 may be found to be violated even in the absence of proof of historic disadvantage.
[37] Whether the s. 15 analysis focusses on perpetuating disadvantage or stereotyping, the analysis involves looking at the circumstances of members of the group and the negative impact of the law on them. The analysis is contextual, not formalistic, grounded in the actual situation of the group and the potential of the impugned law to worsen their situation.
[38] Without attempting to limit the factors that may be useful in assessing a claim of discrimination, it can be said that where the discriminatory effect is said to be the perpetuation of disadvantage or prejudice, evidence that goes to establishing a claimant’s historical position of disadvantage or to demonstrating existing prejudice against the claimant group, as well as the nature of the interest that is affected, will be considered. Where the claim is that a law is based on stereotyped views of the claimant group, the issue will be whether there is correspondence with the claimants’ actual characteristics or circumstances. Where the impugned law is part of a larger benefits scheme, as it is here, the ameliorative effect of the law on others and the multiplicity of interests it attempts to balance will also colour the discrimination analysis.
[39] Both the inquiries into perpetuation of disadvantage and stereotyping are directed to ascertaining whether the law violates the requirement of substantive equality. Substantive equality, unlike formal equality, rejects the mere presence or absence of difference as an answer to differential treatment. It insists on going behind the facade of similarities and differences. It asks not only what characteristics the different treatment is predicated upon, but also whether those characteristics are relevant considerations under the circumstances. The focus of the inquiry is on the actual impact of the impugned law, taking full account of social, political, economic and historical factors concerning the group. The result may be to reveal differential treatment as discriminatory because of prejudicial impact or negative stereotyping. Or it may reveal that differential treatment is required in order to ameliorate the actual situation of the claimant group.
[40] It follows that a formal analysis based on comparison between the claimant group and a “similarly situated” group, does not assure a result that captures the wrong to which s. 15(1) is directed — the elimination from the law of measures that impose or perpetuate substantial inequality. What is required is not formal comparison with a selected mirror comparator group, but an approach that looks at the full context, including the situation of the claimant group and whether the impact of the impugned law is to perpetuate disadvantage or negative stereotypes about that group.
(2) The Role of Comparison Under Section 15: The Jurisprudence
[41] As McIntyre J. explained in Andrews, equality is a comparative concept, the condition of which may “only be attained or discerned by comparison with the condition of others in the social and political setting in which the question arises” (p. 164). However, McIntyre J. went on to state that formal comparison based on the logic of treating likes alike is not the goal of s. 15(1). What s. 15(1) requires is substantive, not formal equality.
[42] Comparison, he explained, must be approached with caution; not all differences in treatment entail inequality, and identical treatment may produce “serious inequality” (p. 164). For that reason, McIntyre J. rejected a formalistic “treat likes alike” approach to equality under s. 15(1), contrasting substantive equality with formal equality.
[43] The Court’s s. 15(1) jurisprudence has consistently affirmed that the s. 15(1) inquiry must focus on substantive equality and must consider all context relevant to the claim at hand. The central and sustained thrust of the Court’s s. 15(1) jurisprudence has been the need for a substantive contextual approach and a corresponding repudiation of a formalistic “treat likes alike” approach. This is evident from Andrews, through Law, to Kapp. When the Court has made comparisons with a similarly situated group, those comparisons have generally been accompanied by insistence that a valid s. 15(1) analysis must consider the full context of the claimant group’s situation and the actual impact of the law on that situation. In Lovelace v. Ontario, 2000 SCC 37, [2000] 1 S.C.R. 950, for example, Iacobucci J., for the Court, having found “that the whole context of the circumstances warrants a refinement in the identification of the comparator group”, stated: “I find that the s. 15(1) inquiry must proceed on the basis of comparing band and non-band aboriginal communities” (para. 64). However, he emphasized that “we must ask whether the impugned law, program or activity has a purpose or effect that is substantively discriminatory” (para. 53).
[44] Against this background, we turn to the s. 15 cases. It is not necessary to canvass every decision. The thrust of the evolving jurisprudence on comparison and the use of mirror comparator groups is revealed by looking at a few pivotal cases.
[45] The decisions in the decade that followed Andrews viewed comparison as an essential facet of s. 15, without proposing a rigid conception of how it should be approached. The jurisprudence was reviewed in Law. While Law referred to “relevant comparators”, it also recognized that discrimination was the central concern and that the focus should be on the nature of the scheme and the appropriateness of the impugned distinctions having regard to the purpose of the scheme and the situation of the claimant. In the end, it was found that discrimination was negated by the purpose of the scheme of addressing long-term financial needs and ameliorating the situation of older spouses, and the particular circumstances of the claimant’s situation as a younger spouse. The claimant neither suffered disadvantage which the pension scheme perpetuated, nor did the distinctions it drew between the younger and the older spouses stereotype or stigmatize young persons. As a result, discrimination was not made out. The Court in Law resolved the issue not by a formalistic comparison between particular groups, but by the contextual factors relevant to the case — the nature of the legislation and the situation of the claimant.
[46] In Gosselin v. Quebec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429, a case concerned with assisted living benefits for younger Québécois, the analysis again focussed on the impact of the impugned law on the claimant group. In applying the s. 15(1) test, the majority stated:
. . . precisely, the question is whether a reasonable person in Ms. Gosselin’s position would, having regard to all the circumstances and the context of the legislation, conclude that the Regulation in purpose or effect treated welfare recipients under 30 as less worthy of respect than those 30 and over, marginalizing them on the basis of their youth. [Emphasis added; para. 28.]
[47] Law, Gosselin and cases like them, while accepting that comparison is at the heart of a s. 15(1) equality analysis, emphasized a contextual inquiry into whether the impugned law perpetuated disadvantage or negative stereotyping.
[48] As for mirror comparator groups, Binnie J., for the Court, summarized the problem in using them in Hodge v. Canada (Minister o